Who Needs Black Robes? Not Judges

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”Read More.

Starting in the new year, judges in Florida can wear robes in any color they want -- so long as that color is black. The state Supreme Court seems to have adopted the new rule -- which also prohibits any robe embellishment -- because of a judge who wore a camouflage robe, which some litigants thought signaled his identity as a good ol’ boy, thereby undercutting public confidence in the judiciary.

Concern for the symbolic integrity of the courts is a perfectly acceptable reason to require uniformity. But the all-black rule isn’t strictly necessary to achieve that goal. The choice to enact it raises questions about how professional uniforms enhance mystique and authority and suppress individuality. And it implicates one of the deepest fashion questions of this or any time: Just what is it about the color black?

To be clear, judges’ robes, which are cousins of those worn by ministers and academics, weren’t always black. The portraits of dead white men that at one time adorned the walls of my law school workplace reveal some stunning scarlet silks, especially on the other side of the pond, where the American practice originated. The great English robe makers Ede & Ravenscroft tailor both legal and academic robes. (They also sell judges’ and barristers’ wigs, still worn in the UK and an even greater marker of uniformity.)

At one time, many Protestant ministers wore predominantly black robes, a rejection of the finery adopted by the Catholic priestly hierarchy and a sign of seriousness. Today, however, the color palette has expanded in many Protestant denominations in the U.S. Lots of ministers seek to express individuality in their garb, which arguably enhances their individual charisma, and probably without much cost to their institutional authority.

So why not judges? William O. Rehnquist, the late U.S. chief justice, wore four gold bars on each arm of his robe -- a tradition he invented for himself after seeing a performance of the Gilbert and Sullivan musical "Iolanthe." To be honest, it looked a little cheesy, and it hasn’t been continued by his successor and former clerk John Roberts. But I don’t think it could be said that Rehnquist’s stripes detracted from his dignity, which was considerable, or that it affected perceptions of how he did his job.

And Justice Ruth Bader Ginsburg has personalized her judicial uniform with lace and silk jabots or judicial collars. They contrast nicely with the black robe and offer a hint of the quasi-feminine alongside her high serious personality and character. They make Ginsburg an individual, albeit a restrained and cautious one.

The Florida judges presume that the public wants its judges to be secular priests, cut off from worldly influences and therefore without individuality. The color black is part of that denial. It’s no coincidence that Saudi Arabian women are required to wear all black -- it’s supposed to minimize attention. The traditional nun's habit was black for a similar reason. Color attracts the eye and becomes associated with sexuality or flamboyance.

But although black may be an international symbol of modesty, putting authority figures in black is supposed to enhance their authority and power. The judge’s black, like the priest’s or the imam’s or the rabbi's, is simultaneously the black of mystery. It’s hard to escape the conclusion that the Florida justices are worried about their lesser colleagues trivializing the aura of the judicial office.

And here’s where the Florida rule, and parallel rules in other states, goes awry. The public is in fact sophisticated enough to understand that judges are humans, not automatons or Turing machines. Judges almost universally aspire to apply the law fairly, without favor or partiality. That aspiration is the source of their authority, not how they look or what they wear.

Left to their own devices, most judges would keep on wearing black robes. But some would wear bright pink or (shocking!) no robes at all. They would be acknowledging their individuality. That might make them less mysterious. And for some, that might be a good thing.

To be clear, I like formality and I like uniforms. I generally teach my classes in the old-fashioned professorial uniform of tweeds and ties. The point is in part to show the students that being there is my job, as it is theirs, and to convey a sense of seriousness and decorum.

But it should be a privilege of the thoughtful worker to individualize the uniform, question it or even ditch it. My colleagues who teach in T-shirts and jeans are making a legitimate point of their own.

In the military, it’s more complicated. There, uniformity is part of training soldiers to obey orders from a rank, not an individual, and lives may turn on the distinction.

But the same considerations don’t apply to judges. The rule of law is a kind of secular religion, to be sure. And judges should be the bearers of its values. They just don’t have to dress in black to do it.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”Read more